No help from court for troubled former SAA director.
The South African Institute of Chartered Accountants (Saica) has announced that it will start with measures to collect R6.1 million in fines from its former member and erstwhile South African Airways (SAA) director Yakhe Kwinana, in addition to the body’s legal costs Kwinana was ordered to cover.
This comes after the Gauteng division of the High Court last week dismissed with costs an application by Kwinana, also formerly chair of the board of SAA Technical, to review and set aside the finding and sanctions against her by a Saica disciplinary committee.
ALSO READ: Ex-SAA board member Yakhe ‘Fat Cakes’ Kwinana fined R6.1m, booted as chartered accountant member
Arrested
In addition to this setback, Kwinana was arrested on Monday and appeared in the Randburg Magistrate’s Court on Tuesday on charges of extortion, theft, intimidation and malicious damage to property.
This relates to a dispute about the occupation of land she claims she owns in the Eastern Cape.
Kwinana and security guards under her instruction allegedly threatened occupiers, demolished their homes and destroyed their property despite a legal dispute about their occupation that is still pending in court.
The case is being transferred to the Eastern Cape.
ALSO READ: Former SAA board member Yakhe Kwinana appears in court after arrest
SAA and Kwinana’s ‘fat cakes’ philosophy
Kwinana was a non-executive board member of SAA from 2009 to 2016 alongside former president Jacob Zuma’s close friend, the late Dudu Myeni, who became SAA chair in 2012.
Saica’s disciplinary action against Kwinana came after a referral by the Zondo Commission of Inquiry into Allegations of State Capture.
During her testimony before the commission, Kwinana raised many eyebrows when she used the analogy of selling “fat cakes” to justify cancelling a R85 million tender awarded to the foreign company LSG Sky Chefs at SAA following a competitive bidding process and handing it to Air Chefs, a SAA subsidiary, without a tender.
Kwinana said this was one of her best decisions at the airline.
“If my daughter is selling fat cakes here at home, why would I go and buy fat cakes next door?” she asked.
“And then if I decided to go and buy fat cakes next door, as a parent, am I not supposed to tell the child that I don’t like your fat cakes? This is how you should do the fat cakes, then please correct here and there and so on?”
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Knowledgeable, suitable, honest?
In its report, the Zondo Commission said Saica “should investigate whether Ms Kwinana has the requisite knowledge and appreciation of her obligations as a chartered accountant and whether she is suitable to continue to practise the profession of a chartered accountant”.
It stated that “answers she gave to certain questions during her evidence revealed either that she has no clue about some of the basic obligations that she should know as a charted accountant or she knew those obligations but dishonestly pretended that she did not know them because it was convenient for her to do so”.
“In either case Saica should be interested in investigating the matter because either explanation may mean she is not fit and proper to practise the profession of a chartered accountant.”
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A chance to speak …
Following an investigation, Saica proceeded with a disciplinary hearing.
Kwinana and her legal representative however walked out on the first day and never returned.
In March 2023, the disciplinary hearing found Kwinana guilty on 13 of the 14 charges brought against her, with one charge being withdrawn.
It imposed the following sanctions:
- Exclusion from Saica membership after finding she was not a fit and proper individual to be a member of Saica and ordered her immediate removal; and
- A total fine of R6.1 million.
ALSO READ: Kwinana welcomes investigations amid damning state capture report findings
Ruling
In dismissing Kwinana’s review application, the court pointed out that a review focuses on the disciplinary process followed by Saica, while the arguments put forward by Kwinana were aimed at an appeal on the merits.
According to the ruling, the courts engage with the merits only to ascertain “whether the decision falls within what could legally be taken, not whether it is the correct or best decision”.
“This poses considerable challenges for Ms Kwinana’s review. The challenges stem from the fact that she chose not to attend the disciplinary hearings and place her objections on the record. In many instances, she uses the review grounds to raise her objections.
“Of course, Ms Kwinana was at liberty not to attend the disciplinary inquiry. However, this comes with the inevitable consequence she must bear when adverse findings are made against her.”
The court dismissed Kwinana’s objections to the Saica process, including that it relied too heavily on the report of the Zondo Commission.
“Having considered the entire disciplinary process, including the hearing and the reasons for the decision, Saica may have used the Zondo Commission report as an initial reference, but it conducted its own independent investigation and disciplinary proceedings,” the court found.
“The disciplinary hearing was a comprehensive evidentiary process, standing on its own merits, and provided Ms Kwinana with a full opportunity to interrogate and challenge the evidence, which included findings of the Zondo report.
“However, she did not make use of this opportunity.
“Review proceedings cannot serve as a means to revisit opportunities that were available but not exercised.”
In a statement, Saica welcomed the court’s ruling and said it is “a confirmation of the robustness and integrity of Saica’s disciplinary processes in ensuring accountability and upholding the highest ethical standards in the profession”.
This article was republished from Moneyweb. Read the original here.
